1. The principles of equality and non-discrimination are essential elements
of a democratic system governed by the rule of law, which is a fundamental condition
for the full observance of human rights. Despite the will expressed by many
states to advance in protecting women's rights, there is often a yawning gap
between the theory and the reality. Taking this into account, the Inter-American
Commission on Human Rights assigns special importance to women's rights in the
hemisphere; the relevance of this issue was highlighted internationally at the
World Conference on Human Rights held in Vienna in 1993, and at the conference
on women's rights held in Beijing in 1995. In that regard, the Commission appointed
a special rapporteur on women's rights; the rapporteur submitted a report on
the situation of women in the Americas that was approved by the IACHR at its
98th session.[1] In addition, the Commission has dedicated
a special chapter to the subject of women's rights in its most recent reports
on the situation of human rights in various countries.[2]

2. The promotion and protection of women's rights is very much related to
the question of discrimination against women in the enjoyment of human rights.
While gender discrimination persists, women cannot fully enjoy their human rights.
For this reason, international legislation bases the protection of women's rights
mainly on the principle of non-discrimination and on the principle of the equality
of men and women.

3. Even though the Peruvian State has adopted major legal reforms to protect
women's rights and to try to eliminate the forms of discrimination, yet certain
legal norms subsist that entail discrimination. In this chapter, the IACHR,
after outlining the international and national legal framework for women's rights,
presents reports from the Peruvian State on the matter, and analyzes the problems
related to two specific issues: discrimination and violence against women.

B. LEGAL REGIME

1. International legal framework

4. The instruments of the inter-American system of human rights, like those
of the universal systems and other regional systems for the protection of human
rights, are characterized by one of their fundamental pillars being the principle
of equality and non-discrimination.

5. In the inter-American system, the American Declaration of the Rights and
Duties of Man provides at Article II: "All persons are equal before the
law and have the rights and duties established in this Declaration, without
distinction as to race, sex, language, creed, or any other factor." Similarly,
the American Convention on Human Rights, ratified by Peru in 1978, provides
at Article 1: "The States Parties to this Convention undertake to respect
the rights and freedoms recognized herein and to ensure to all persons subject
to their jurisdiction the free and full exercise of those rights and freedoms,
without any discrimination for reasons of race, color, sex...." The Inter-American
Convention on the Prevention, Punishment and Eradication of Violence against
Women, "Convention of Belém do Pará," ratified by Peru in 1996, defines
violence against women as "... any act or conduct, based on gender, which
causes death or physical, sexual or psychological harm or suffering to women,
whether in the public or the private sphere."

6. In the United Nations system, the Convention on the Elimination of All
Forms of Discrimination Against Women, ratified by Peru in 1982, defines discrimination
against women as "... any distinction, exclusion or restriction made on
the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental
freedoms..."; it adds at Article 2 that "States Parties condemn discrimination
against women in all its forms, agree to pursue by all appropriate means and
without delay a policy of eliminating discrimination against women...."

2. Domestic legal framework

7. The Peruvian Constitution indicates, at Article 2, that "All persons
have the right: ... to equality before the law. No one may be discriminated
against for reason of origin, race, sex, language...." As regards the right
to work, at Article 23 the Constitution provides: "Work, in its various
forms, is the subject of priority attention by the State, which protects, in
particular, mothers, minors, and disabled persons who work...." And at
Article 26: "In the labor relationship, the following principles are respected:
1. Equal opportunity without discrimination...."

8. As can be observed, the main norms applicable in Peru, both international
and national, enshrine the principles of equality and non-discrimination as
the basis for women to enjoy their human rights in Peru.

C. PROGRESSIVE MEASURES

9. The Peruvian State, as mentioned earlier, has adopted important legal reforms
to protect women's rights to try to eliminate discrimination against women.
At the international level, one of the most important legislative advances is
the recent ratification by Peru, in 1996, of the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence against Women. As for
domestic provisions, first, Article 24 of the Civil Code, in force, transformed
into a right the obligation of married women to take the husband's last name
appended to their own.[3] Second is the Law Against Family
Violence, No. 26,260, promulgated in 1993, and later amended by Law No. 26,763
of 1997. This law establishes the State policy of eradicating violence, creates
mechanisms for protecting victims, and defines the role that should be played
by social organizations to defend women and children.

10. From the standpoint of practical advances, it is important to highlight
the creation, by the Peruvian State, of the Ministry for the Promotion of Women
and Human Development (PROMUDEH), and the general advances suggested by various
indicators. Thus, for example, the Gender-related Development Index (GDI) used
by the UNDP,[4] indicates that in recent years greater equality
as between men and women has been brought about in three main areas: life expectancy,
educational coverage, and income.

D. DISCRIMINATION

11. Notwithstanding the effort made by the Peruvian State in this respect,
and the consequent important advances, situations of discrimination against
women persist in Peru in areas such as education, work, marriage, and politics.
This situation is all the more difficult for indigenous women (infra).

12. In the area of education, for example, the disparity in illiteracy continues
to be significant. The percentage of illiteracy among women is much higher than
among men.[5] Furthermore, it is significant that according
to another index, the Gender Empowerment Measure (GEM), Peru appears to have
slipped in recent years in terms of the degree of political participation and
economic power of women as compared to men.[6]

13. In its observations on the draft of this report, Peru has described the
situation with respect to women's rights, providing some figures that demonstrate
the degree of "participation of women in the different areas of public
life in Peru." In this respect, the State reported that from 1995 to 1998,
women were designated to head up five ministries (7.5% of all such appointments).
In addition, it is noted that women occupy 30% of the high-level management
jobs in the public administration, while the percentage is 15.7% in the decentralized
public institutions. The State adds that, for example, of the diplomatic officials,
14.55% are women, and that women account for 13.59% of the ambassadors. In another
area, women have been allowed into the National School of the Merchant Marine,
and gender issues are becoming part of the school curriculum. In addition, the
State indicated that in order to promote women's participation in the exercise
of power, the organic law on elections and the municipal elections law incorporated
a rule according to which women have to account for at least 25% of the candidates.

14. As regards civil rights, some provisions still in force continue to violate
women's right to non-discrimination. Previously, a married woman needed to have
her husband's authorization in order to work outside the home, while the husbands
could do so freely. This provision was changed by Article 293 of the current
Civil Code, pursuant to which each spouse requires the consent of the other
to work. In this respect, it has been noted that in practice this provision
is applied exclusively to women, and that consequently it failed to solve the
problem.[7] Furthermore, the civil capacity of unmarried women
who have lived in consensual union is quite limited compared to the civil capacity
of married women. In this regard, the laws do not grant concubines the right
to community property when the partner dies, and only exceptionally are they
given the right to seek alimony when they have been abandoned.[8]

15. On the question of labor rights, it should be noted that the 1993 Constitution
did not expressly include labor rights of women recognized by the previous Constitution,
such as the right to equal opportunity for access to work in general, thereby
reducing this right exclusively to labor relations, and the right of women and
men to equal pay for equal work. On not including the right of women and men
to equal pay for equal work, Peru ignored Recommendation No. 90 of the International
Labor Organization (ILO), and the provisions of ILO Convention 100, which enshrines
that right. In this connection, the IACHR observes that downgrading such rights
from constitutional rank is tantamount to opposing the trend to accord them
recognition at the highest level of the legal order. In its comments on the
draft report, Peru argues that the Constitution includes a general prohibition
on discrimination. The Commission considers, however, that a generic anti-discrimination
provision does not suffice to implement the ILO recommendations.

16. Furthermore, the Peruvian government derogated Law No. 2,851, which established
rights for pregnant women, such as prenatal and post-partum leave, the right
to one hour daily to nurse their children, the right to additional compensation
in the case of unjustified dismissal or workplace accident, and the right to
nurseries in the workplace, among others. As for dismissal attributable to pregnancy,
women continue to have the right to ask to be reinstated, but there is no presumption
in favor of the woman that the dismissal was due to her pregnancy. To the contrary,
the woman bears the burden of proof, which in practice makes the right to reinstatement
inoperable. In this way, in respect of labor law, not only was discrimination
against women exacerbated, but in addition, pregnant women were left with practically
no protections.[9]

17. As can be seen, despite the creation of a ministry entrusted with seeing
to the human rights of women, there has been backsliding in legislation, and
problems of discrimination against women persist in Peru that have yet to be
resolved by the Peruvian State.

E. VIOLENCE

1. Domestic and sexual violence

18. Violence against women is a clear expression of gender discrimination.
The two most common kinds of violence against women are sexual violence and
domestic violence. Even though these aspects of violence against women are not
committed by state agents, their occurrence gives rise to the responsibility
of the State when it fails to implement reasonable preventive measures, does
not duly investigate the incidents of violence, or fails to punish the persons
responsible.

19. In the area of sexual violence, the IACHR was informed during its on-site
visit that in Peru there is one rape every two hours, on average, and that paradoxically
the number of persons detained on rape charges is declining with each passing
day. The Commission was told that there is no clear and effective state policy
for preventing sexual violence, or for providing services and treatment to the
victims, within or outside the confines of the criminal proceeding.[10]
The IACHR was also told that the rape of an adult woman in Peru is an "offense
subject to reconciliation," as there is an exemption from the penalty for
rapists who then contract marriage with the victim. This exemption clearly minimizes
the offense and suggests that rape is considered a purely sexual offense, a
private matter, and not a crime that affects all society insofar as it violates
fundamental rights that the State should protect. The IACHR has stated, with
respect to situations such as that mentioned: "One widespread problem concerning
these crimes is that the right being protected in the legislation of several
of these countries continues to be 'honor', which means that only 'decent women'
may be victims, for example, of rape."[11] When commenting
on the draft report, the State pointed out that the 1999 reform to the Criminal
Code has done away with the private cause of action for offenses involving rape,
rape of persons who are unconscious or unable to put up resistance, rape of
persons under authority or surveillance and seduction. It also noted that "in
addition, the indication that one liable for seduction shall be exempt from
the penalty imposed on rapists if he marries the victim, has been suppressed;
in no case is an exemption from the penalty possible for rapists, whatever the
victim's age."

20. Also of concern to the Commission are the complaints it has received on
situations of violence against women in the public health services. As the Commission
was told, the forms of violence range from degrading treatment, verbal offenses,
indifference, and negligence to rape and violence against pregnant women and
women who are suspected of having had an incomplete abortion. In addition, according
to the various versions, there is institutional discrimination in health care
for women, which has become a practice that is tolerated and enjoys impunity,
given the institutional cover-up in response to complaints, and women's reluctance
to lodge complaints for fear of provoking a hostile response on the part of
health care providers.[12]

21. As noted, even though the State has the intent to end violence against
women,[13] and has promulgated laws with this in mind,[14]
in practice, sexual and physical violence against women, in both the private
and public spheres, continues to be a serious problem in the Peruvian State.

2. Reproductive health

22. Even though the reproductive health programs that have been developed
with full respect for the human rights set forth in the American Convention
and in all other human rights instruments are valued positively by the IACHR,
the issue of reproductive health in Peru is a matter of grave concern to the
Commission, especially with respect to the policy of family planning through
Voluntary Contraceptive Surgery (AQV: Anticoncepción Quirúrgica Voluntaria).
Law No. 26,530, promulgated in September 1995, established the National Family
Planning Program, and implemented sterilization as a family planning method.
Pursuant to this law, the Ministry of Health began an intensive campaign to
raise awareness, through health fairs, to induce women to make use of irreversible
contraceptive methods in an effort to control the birth rate, especially in
peasant women.

23. In principle, the Commission considers that a campaign to disseminate
family planning methods is a positive action, so long as it is voluntary family
planning. Nonetheless, in Peru, according to information received from several
sources, the actions involving "voluntary contraceptive surgery" have
led to cases of forced sterilization. For example, the Ombudsman's Office told
the IACHR, during its on-site visit to Peru, that it had received 168 complaints
regarding forced sterilizations.

24. As of March 1998, the State undertook to make corrections to the program,
some health fairs were eliminated, and in this way the number of users of AQV
dropped. However, according to information received by the Commission during
its on-site visit, massive and often forced sterilizations continue in Peru.
The Office of the Human Rights Ombudsman has spoken out against the following
shortcomings: lack of prior and complete information about contraceptive methods;
threats with fines and imprisonment if the women do not agree to be sterilized;
lack of diligence and sanitation in the surgical procedures; lack of follow-up
as a result of which many women become ill in the wake of the operation, and
some have even died; and discrimination in the implementation of the AQV, insofar
as the campaign is directed mainly to women, not to fertile men.[15]
Peru has indicated in its observations to this report that the Office of the
Human Rights Ombudsman has made a series of recommendations on this issue that
are being implemented by the Government.

25. One case pending before the IACHR in which the flaws and generally critical
situation of women's reproductive rights in Peru are alleged is that of María
Mamerita Mestanza. A peasant woman, she died one week after having been subjected
to sterilization. According to the complaint, not only was the procedure forced
on her, but she did not receive the post-surgical care that could have saved
her life. The case is now being processed by the IACHR.

26. The Commission considers that when a family planning program ceases to
be voluntary and turns women into a mere object of control so as to make adjustments
to population growth, it loses its raison d'etre and instead poses a danger
of violence and direct discrimination against women.

F. RECOMMENDATIONS

27. Bearing in mind the foregoing analysis and the specific problems raised,
the Commission makes the following recommendations to the Peruvian State:

1. Amend Articles 20, 293, 416, 724, and 822 of the Civil Code and all other
provisions or practices that entail discrimination against married or unmarried
women.

2. Effectively guarantee the principle of equal pay for equal work as between
men and women, and once again expand the right to equal opportunity so as to
include access to work.

3. Regulate protection of maternity in the area of work, giving women the same
rights they had prior to the derogation of Law No. 2,851.

4. Disseminate the information on the Convention of Belém do Pará, the rights
protected by it, and the mechanisms of supervision; and implement reasonable
measures to prevent and respond to acts of sexual and domestic violence, establishing
effective guarantees so that victims can denounce rapists.

5. Ensure extensive enforcement of the Law against family violence, No. 26,260
of 1993, so as to guarantee full protection for women's human rights and take
the actions required to make this law effective.

6. Adopt measures aimed at ensuring respect for women's rights in public health
services, such as: training in human rights for health care providers, developing
mechanisms to eradicate the covering up of offenses in the health care establishments,
and setting up offices to receive complaints in the hospitals and health centers.

7. Carry out the recommendations made by the Office of the Human Rights Ombudsman
in its "Report on the Application of Voluntary Surgical Contraception:
the cases investigated by the Office of the Ombudsman regarding forced sterilizations."

Notes_______________

[1] See IACHR, Report on the Status of Women in the Americas,
IACHR, Annual Report 1997, p. 1023 and ff. The IACHR recognizes the important
contribution in this area by the Inter-American Commission of Women (CIM) within
the institutional framework of the OAS.

[2] See, e.g., IACHR, Report on the Situation of Human Rights
in the Dominican Republic, 1999; Third Report on the Human Rights Situation
in Colombia; and Report on the Situation of Human Rights in Mexico, 1998.

[4] United Nations. United Nations Development Program. Human
Development Reports 1995, 1996, 1998, and 1999, Gender-related Development Index.
To understand the GDI, one must first explain the Human Development Index, or
HDI. The HDI is the index used by the United Nations Development Program to
try to gauge the countries' integral development, by taking the average of the
differences as between men and women.

[5] Illiteracy rates continue to be uneven: While approximately
6% of men are illiterate, the percentage is about 16% for women.

[6] Id. The GEM measures the relative power of men and women
in the country's political and economic activity. Three variables are also used:
the first is a composite of two indices, the percentage of men and women in
administrative and managerial positions, and the percentage share of each sex
in professional and technical jobs; the second is the percentage of legislative
seats held by men and women; and the third is the income, to gauge the power
of economic resources as between men and women.

[13] In its observations on the draft report, the State mentioned
several programs that have been implemented at different levels of the State,
in order to bring an end to the problem of violence against women. It is noted,
among other things, that the year 2000 is "the Year to Struggle against
Family Violence"; the creation of a multisectoral plan that provides for
integral projects for the prevention and treatment of family violence; the project
"Formación de Grupos pro Mujer y Mesas Locales para la Atención de Violencia
Familiar," whose objective is to integrate the actions of the grass-roots
organizations and the work of local institutions. The Commission is very pleased
to learn of these plans, and hopes that their objectives can be met.

[14] In its comments on the draft report, the State noted
that several laws have been issued with respect to family violence, including:
Law 27,007, which authorizes the Family Prosecutor to reach pre-trial settlements
in the area of family violence; Law 26,842, "General law on Health,"
which considers family violence a mental health problem; and Law 27,115, which
establishes a new procedure in relation to offenses against sexual liberty,
which shall be kept confidential, withholding the victim's name.